Seeking emergency stay to enforce provision struck by district court

Texas has appealed a federal court's Monday ruling that a key provision of the controversial abortion regulations House Bill 2 is unconstitutional by arguing, in part, that there is no evidence that "a woman" seeking an abortion would be harmed by enforcing that provision.

On Monday, federal district Judge Lee Yeakel ruled that a provision of HB 2 that requires abortion-performing doctors to have hospital admitting privileges within 30 miles of each clinic where the perform the procedure has no "rational basis" and ultimately places an undue burden on women seeking access to safe and legal care, thus rendering that provision unconstitutional.

A legal challenge to that provision, and a second, that requires doctors to follow an older, Food and Drug Administration-approved protocol for administering pharmaceutical abortion – a provision that Yeakel largely upheld – was filed by abortion providers – including Planned Parenthood and Whole Woman's Health, both of which provide abortion care in Austin – and the ACLU. They argued that the law, on its face, is unconstitutional and should be blocked from taking effect today, Oct. 29.

But according to Texas Solicitor General Jonathan Mitchell, who works for Attorney General Greg Abbott, by challenging the law before it takes effect, the providers weren't able to show that it would actually impact any specific woman seeking abortion. In a motion filed today with the 5th U.S. Circuit Court of Appeals, Mitchell argues that in his ruling Yeakel misunderstands the law. "Under the 'undue burden' standard, an abortion regulation is unconstitutional only when it has 'the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus,'" he wrote. "One will search [Yeakel's] opinion in vain for a statement or finding that any woman will face any obstacle," he continued. Rather, he argues that the providers only demonstrated that they would be harmed by a provision that would force them to shutter their operations. Even so, he argues that women would still be able to obtain care and would only have to travel farther to do so. It is "impossible to uncover evidence of the effects of HB 2's hospital-admitting-privileges requirement when the law has never been allowed to take effect," he wrote.

At trial last week, witnesses testified that at least 13 clinics would shutter operations today had the law not been stopped, and that such widespread closure would result in 22,800 women being left without meaningful access to safe and legal care. Even those women would mostly be able to secure services within just 100 miles from home, Mitchell argues. "But the district courts' ruling is so aggressive that it ignores these concessions," he wrote. There are already only 13 counties out of Texas' 254 that are home to abortion providers, meaning there was already a bit of traveling that needed to be done, he argues.

That the provision creates an undue burden on women, Mitchell argues, there are "no findings, evidence, or argument to support this claim."

The AG's office is asking the court to hear the matter in January 2014. The Fifth Circuit has not yet ruled on the request for an emergency stay that would allow enforcement of the provision for now.

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